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BZA 03-15-05 Meeting MinutesMEETING MINUTES OF THE FREDERICK COUNTY BOARD OF ZONING APPEALS Held in the Board Room of the Frederick County Administration Building, 107 N. Kent Street, Winchester, Virginia, on March 15, 2005. PRESENT Theresa Catlett, Chairman, Opequon District; Dwight Shenk, Gainesboro District; Robert Perry, Vice Chairman, Stonewall District; Kevin Scott, Shawnee District; and, Dudley Rinker, Back Creek District; and, Mr. Robert W. Wells, Member -At- Large. ABSENT: Lennie Mather, Red Bud District. STAFF PRESENT Mark R. Cheran, Zoning and Subdivision Administrator; Bernard S. Suchicital, Zoning Inspector; and, Bev Dellinger, BZA Secretary. CALL TO ORDER The meeting was called to order by Chairman Catlett at 3:25 p.m. Chairman Catlett asked Mr. Cheran the cut off for next month and Mr. Cheran responded that Friday, March 18, 2005, is the cut off date. lJ PUBLIC HEARING Appeal Application #03 -05 of Roy R. Beatty and Patricia G. Beatty, to appeal the decision of the Zoning Administrator in the administration of the Zoning Ordinance pertaining to Section 165 -54 D (c), changes to the rural preservation tract. The subject property is located on Route 50 West, left onto Route 614, left onto Route 612 and approximately one half mile on the left, and is identified with Property Identification Number 59 -A -34 in the Back Creek District. ACTION — APPEAL DENIED Mr. Cheran gave the staff report. The rural preservation subdivision known as Deer Ridge Estates was approved by Frederick County on August 9, 2002. This subdivision was created under Section 165 -54 of the Frederick County Zoning Ordinance. Section 165 -54 allows lot sizes of less than two acres, with the exception of a 40% set aside for a rural preservation tract. The tract must stay intact and has only one building right. The recorded plat for this rural preservation subdivision shows 46 acres being in the preservation tract. The plat was recorded on August 12, 2002, with the statement that the tract cannot be subdivided. Staff is requesting to affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance Section 165- 54D(c), that the tract known as a rural preservation cannot be changed in any way with regards to the recorded plat. Mr. Cheran directed the Board to the screen and he showed an aerial view of the rural preservation subdivision. Mr. Cheran also pointed out that in their agendas, the Board would find a copy of the determination letter to the applicant. Frederick Co. Board of Zoning Appeals 1285MinutesofMarch15, 2005 Minute Book Page Mr. Cheran further stated that the Frederick County Zoning Ordinance is solid on rural preservation lots of ything being added to it. Consequently, the Zoning Administrator and the ordinances have not allowed any land Lions to happen, other than the one building right that is allowed on a rural preservation lot. The ordinance does state no changes, adding on to a recorded plat. Cases have come before the prior Zoning Administrator to add to or take away from the rural preservation. The only way that could possibly ever happen is if the applicant, who is the property owner, wanted to take it out within a ten year period that was comparable with the Comprehensive Plan of Frederick County. The Comprehensive Plan does not count this area, which basically would be an urban development area. In other words, if you had a rural preservation tract inside the Urban Development Area, you would have to apply to the Board of Supervisors to take a tract out of the rural preservation tract to use for further subdivision. Mr. Cheran pointed out that the BZA did hear a case and ruled on a boundary line adjustment which was an appeal, #18 -01. A boundary line adjustment is a lot less intrusive land use action. In this case, the Board affirmed the decision of the Zoning Administrator and did not allow that boundary line adjustment. Staff is requesting the BZA to affirm the Zoning Administrator's determination with regard to Section 164- 54D(2) of the Frederick County Zoning Ordinance. Mr. Cheran stated Mr. Thomas Chasler is here as Mr. Beatty's representative, as well as Mr. Beatty. Mr. Perry asked if the 46 acres is an exact 40% of the total. Mr. Cheran stated that it's probably a little more than 40 %. Mr. Perry asked that when Mr. Cheran mentioned the boundary line adjustment, is it hypothetically possible to make a boundary line adjustment to get it down to where it would be exactly 40 %. Mr. Cheran stated that's one avenue. Under this scenario, and what the applicant has asked, is just to affirm that we can't make that change. This could be done rmder a different route; a different Board would look at that under the Subdivision Ordinance, not the Zoning Ordinance. f Chairman Catlett asked Mr. Cheran if the action that was taken in 2002 when they created this tract, if there a to be no further subdivision of that tract. Mr. Cheran responded this is correct. Mr. Shenk asked if this is subdividing the property, or if they're asking to do a boundary line adjustment? And with the boundary line adjustment you still have in excess above and beyond what is required at 40 %? Mr. Cheran stated that is correct, but we have customarily treated it that no land actions can happen on a rural preservation tract. Mr. Shenk asked if it is stated exactly like that in the ordinance. Mr. Cheran said that is the intent of the ordinance. What it says is that the rural preservation tract shall not be subdivided. Mr. Shenk said we're not subdividing it. Mr. Cheran said it's not subdividing it, but it must remain as it's platted, it says that 40% must remain. If you do a boundary line adjustment or land action, whether you're going above the 40% or not, it says that what's platted will stay as the rural subdivision tract. Mr. Rinkcr said, in the original subdivision, they were allowed X number of lots. Did they get the full number of lots they were allotted or did they choose to have less than the number they could have had? Mr. Cheran stated that according to the plat, that was the lot number that they got as is with the 40% set - aside. Mr. Shenk asked if they were talking about a boundary line adjustment to add more acreage to lots 3 & 4. Are there currently residences on those lots? Mr. Cheran responded yes, there are. Mr. Shenk stated that nothing will change other than ownership of property. Mr. Cheran stated that would be better answered by the applicant. Mr. Rinker asked if it was to create an additional lot. Again Mr. Cheran stated that the applicant can better swer that. Frederick Co. Board of Zoning Appeals Minutes of March 15, 2005 Minute Book Page 1286 Chairman Catlett asked the applicant or his representative to speak. Mr. Thomas Chasler and Mr. Roy 0atty approached the podium. Mr. Chasler stated that the subdivision plat that was recorded totaled 65+ acres ginally and the preservation tract was 48 acres. So at the time, there was 73%, almost 74 %, of the entire tract as a preservation tract. What is being proposed is that between five and seven acres be added each to lot 3 and lot 4 and that would create almost 52 %. The preservation tract would still be well in excess of the 40 %. We have requested a boundary line adjustment and specifically, we have requested that language be placed on the plat that this new lot 3 and the new lot 4 can no longer be subdivided. Mr. Chasler further stated that what you have is no impact, there's not going to be an additional building lot, and there's not going to be an additional impact to the County. You're going to have a preservation tract that is well in excess of the 40% requirement. When we look at the ordinance, it states that small acre tracts can be permitted provided that "40% of the parent tract must remain in tact as a continuous parcel ", and that's exactly what we have here. When we talk about the intent, you have to look at the ordinance and understand the way it's written is if somebody started off with a 40 %, then as you go down to C, it says "no future division of the portion of the parent tract will be permitted ". If you start at 40% and no future division is permitted, then you remain at 40 %, exactly what the ordinance is telling you. Maybe it should have read a minimum of 40 %, and that's probably the best way to define that because I'm certain that there are many tracts out there that have been recorded that are not 40 %, just like this one was 74 %. The intent of the ordinance is to keep a preservation tract that's at least 40 %. We're not asking for a subdivision, we're not asking for a building lot. All we're asking is that aboundary line adjustment be approved restricting a subdivision of the new lot 3 and the new lot 4, and still stay at 40 %. In actuality, if seven acres is added to each tract, there would be 51.6 %. Mr. Wells asked why, if it's a non - issue, you want to add five to seven acres to lots 3 and 4. Mr. Chasler stated that the owner of lot 3 and the owner of lot 4 have requested to purchase additional land so they have a ger parcel than the two acres that they now have. Mr. Wells stated that the home owners decided they wouldliketopurchaseextralandandMr. Beatty would like to sell them the land is the reason we're looking for a boundary line adjustment. Mr. Chasler responded that a boundary line adjustment is what has been requested and not a subdivision of the property. Mr. Perry asked which lots are 3 and 4 and which parts of these boundaries will be adjusted. Mr. Chasler responded it would be the back, the rear of the lots. Mr. Shenk said currently there's a drainfield easement that is in the RP. Is that drainfield easement for lot') or lot 4? Mr. Chasler responded it's for lot 1. Mr. Shenk asked if that would be part of the property involved. Mr. Chasler said it would be a part of the property and it would be in the deed that there was a drainfield easement for the benefit of lot 1. Mr. Beatty stated that both property owners approached him about buying the property. They cannot build on it because he's already told them that because he doesn't want any more houses behind him. That's the same reason they want it, they don't want any houses in back. Mr. Wells said they can't build on it, but you can't build on it now. Mr. Beatty said they can never build on it. Mr. Wells said, so nobody's going to build there, that's a no- point, they just want some land for their kids to walk around on. But they can already walk around on it now. Mr. Beatty stated no, it's not theirs, and because of liability against him. 0 Mr. Rinker asked Mr. Beatty how many acres he got total from the original tract. Mr. Beatty responded Frederick Co. Board of Zoning Appeals Minutes of March 15, 2005 Minute Book Page 1287 seven plus the reserve. Mr. Rinker stated actually he was entitled to 13 or 14 lots and you chose not to do that. r Beatty stated from the old plats, they had it divided into 22 or 23 lots, and he said no, that's not what I want. just wanted them across the front. Chairman Catlett asked if anyone else is present to speak in favor of the applicant. No one responded. Chairman Catlett asked if anyone is opposed who would like to speak. Stephen Zebarth approached the podium. He owns property on both the west and north part of Mr. Beatty's land. Mr. Zebarth stated he doesn't have a problem with Mr. Beatty adjusting that line. Mr. Zebarth asked if you're not going to build any homes on there, why are they out to buy some more land. Mr. Zebarth stated that his concern is there are perks all along that line in the rural preservation land. He understands the lots can be extended, but why are there perks on that tract of land if there's not going to be any homes and it can't be further subdivided. Mr. Zebarth asked Mr. Chasler and Mr. Beatty to respond to that. Chairman Catlett asked Mr. Zebarth if he's saying that someone recently had been there to do perk tests and Mr. Zebarth responded yes. Chairman Catlett directed a comment to Mr. Cheran. She knows this Board's duty here today is to either affirm your decision or reverse that decision, but regardless of what this Board does, there can be no further building on any of this land in question. Is that correct? Mr. Cheran responded that is correct. Chairman Catlett stated that while the perk tests may be of great concern to Mr. Zebarth, this Board doesn't have any authority to say whether anything can be built or not be built. The only thing this Board can do is to say Oether the Zoning Administrator interpreted the Code correctly and either affirm his decision that the boundaries cannot be further changed or that it can be to make larger lots. While they don't discount all the neighbors concerns. it's not anything that this Board can do anything about. Chairman Catlett asked if anyone else is opposed who would like to speak. There was no response. The public portion of the meeting was closed. DISCUSSION Mr. Wells asked Mr. Chasler or Mr. Beatty to respond for the record about the perk tests on the property. Mr. Beatty responded that the perk holes were done prematurely. Once he found out they couldn't build on it, it was really of no value to him. The neighbors saw the tractor digging the perk holes and they approached him and asked him if he wanted to sell it. Mr. Wells stated he's heard everyone say the lots cannot be built on. Is that part of the agreement? Not just a house, but nothing can be built there? Mr. Cheran stated if the Board allows the boundary line adjustment, the rural preservation tract would stay. Because that becomes part of lots 3 and 4, if the applicant wants to put it on the deed, that's up to them. As far as Mr. Cheran is concerned, that's still lot 3 and 4. If next week someone wanted to take the house down and move the house back off the road a little more into that extra acreage, they would be able to do that because those two lots are not part of the rural preservation tract. That's what needs to be understood. That's what could happen. 0 Mr. Rinker said, basically, you could build on that lot inside of the setbacks. Mr. Cheran said that is correct. Frederick Co. Board of Zoning Appeals Minutes of March 15, 2005 Minute Book Page 1288 Chairman Catlett recognized Mr. Zebarth and allowed him to again address the Board. Mr. Zebarth stated t all he is hearing is we're not going to subdivide or we're not going to put homes on those two tracts that are extended. What about that other piece of lot that's still 51 %? That still gives 12 acres if you're going to go to the 40% in rural preservation that you could feasibly come back here and argue, let's put six more two acre lots in there and I've got five or six perks up and down this line and you've got access to it now. Mr. Zebarth said if they would like to come up and say, once we have the preservation tract and it's 51 %, we're not going to subdivide any of that, he would be excited. Mr. Zebarth stated he did not believe that would happen, because ultimately he believes Mr. Beatty is trying to subdivide in behind the tract which is another 35 acres that Mr. Beatty owns. Mr. Rinker stated that when a rural subdivision is submitted with a preservation set - aside, it is understood that it is for perpetuity. Mr. Rinker made a motion to affirm the Zoning Administrator's decision. Mr. Perry seconded the motion and it passed by majority vote. PUBLIC HEARING Variance Request ##04 -05 of Lester McDonald for a 10 foot front yard variance, 40 foot right side yard variance, and 35 foot left side yard variance. This property is located approximately 1,000 feet from Martinsburg Pike (Route 11 North) on Woodbine Road. The subject property is identified with Property Identification Number 33A -A -23 in the Stonewall Magisterial District. ACTION - VARIANCE APPROVED Mr. Cheran presented the staff report. This property was created in 1964 as noted by the deed Oplats included in your agenda. Frederick County adopted performance zoning in 1967. The FrederickCountyhistoricalzoningmapshowsthispropertywaszonedA -2 (Agricultural General) in 1967. The property setback lines at the adoption of the zoning ordinance were 35' front and 15' sides. Frederick County amended its Code in 1989 to change the rural zoning districts in the current RA (Rural Areas) zoning district. The current setbacks for property in the RA zoning district abutting lots with residential use are: 60' front. 50' rear and sides. Mr. Cheran further stated that the Code of Virginia, Section 15.2- 2309(2), states that no variance shall be authorized by the Board unless it finds that 1) strict application of the Ordinance would produce an undue hardship; b) that such hardship is not shared generally by other properties in the same zoning district and the same vicinity; and c) that the authorization of such variance will not be of substantial detriment to adjacent property, and that the character of the district will not be changed by the granting of the variance. The applicant is seeking a variance of 35' on the left side and 40' on the right side of this property. Should this variance be granted, the building setbacks for this property would be: 15' left and 10' right side of the property. It appears that this variance meets the intent of the Code of Virginia, Section 15.2- 2309(2), and this request for a 35' and 40' variance from the current setbacks of the RA zoning district may be justified. Should this variance be granted, it will allow this parcel to have the similar setbacks of the adjacent properties. Chairman Catlett asked Mr. Cheran if based on the width of the lot, if we applied this 60' and 50' rear and sides, they wouldn't be able to build a house. Mr. Cheran stated that is correct. Mr. Cheran her stated that prior to the zoning ordinance of 1967, most of the non - conforming, "grandfathered" operties usually had a 50' right -of -way and this property did have that. We're mainly looking at the Frederick Co. Board of Zoning Appeals Minutes of March 15, 2005 Minute Book Page 1289 Mr. Rinker asked what the side setbacks were at that time. Mr. Cheran responded they were 35' each side in 1967.n . Chairman Catlett asked Mr. McDonald to come forward. Mr. McDonald stated that he is the property owner on Woodbine Road. The property has been passed down from family to family. Mr. McDonald stated that he has quite a few people interested in the property and they want to build a house that's uniform with the rest of the houses. Chairman Catlett asked if anyone is present to speak in favor of the variance and no one responded. She then asked if anyone is present who is opposed and no one responded. Chairman Catlett closed the public portion of the discussion. DISCUSSION Mr. Rinker stated that it appears a hardship does exist and he made a motion to approve this variance. Mr. Scott seconded the motion and it passed unanimously. PUBLIC HEARING 0 Variance Request 405 -05 of Ann W. Smith for a 35 foot side yard and rear yard variance. This property is located off of Cedar Creek Grade (Route 622), right onto Fromans Road (Route 623), approximately one half mile on the right. The subject property is identified with Property Identification Number 72 -A -8 in the Back Creek Magisterial District. ACTION — VARIANCE APPROVED Mr. Cheran gave the staff report. This property was created in 1961 as noted by the deed and plat included in your agenda. Frederick County adopted performance zoning in 1967. The Frederick County historical zoning map shows this property was zoned A -2 (Agricultural General) in 1967. The setback lines at the adoption of the zoning ordinance were 35' front and 15' from the sides. Frederick County amended its zoning ordinance in 1989 to change the rural zoning districts to the current RA zoning district. The current property setbacks for property in the RA zoning district abutting lots with residential use are 60' front, 100' rear and 50' sides. Mr. Cheran further stated that the Code of Virginia, Section 15.2- 2309(2), states that no variance shall be authorized by the Board unless it finds that 1) strict application of the Ordinance would produce an undue hardship; b) that such hardship is not shared generally by other properties in the same zoning district and the same vicinity; and c) that the authorization of such variance will not be of substantial detriment to adjacent property, and that the character of the district will not be changed by the granting of the variance. The applicant is seeking a variance of 15' on the right and left side of the property and 65' for the rear of this property. Should this variance be granted, the building setbacks for this property would be 35' left and right side and 35' in the rear of the property. It appears that this variance will meet the intent of the Code of Virginia 15.2- 2309(2) and this request for a variance from the current setbacks of the RA zoning district may be justifi ed. 0 Mr. Cheran stated that Mr. Boyd Pitcock is here to represent the applicant and owner, Ann Smith. Frederick Co. Board of Zoning Appeals 1290MinutesofMarch15, 2005 Minute Book Page Mr. Pitcock approached the podium and stated that Mrs. Smith is his aunt. Mr. Smith passed away and Mrs. Smith lives in Fairfax, VA, and she's ready to retire here. Mr. Pitcock stated that the lot is very tight; one third of it is lost over the bank. He met with the Health Department and got the system laid out in the only spot it can go. Chairman Catlett asked if anyone is present to speak in favor of the variance request and no one responded. She then asked if anyone is present who is opposed to the request. Mr. Lew Costello approached the podium. He stated he is Secretary/Treasurer of Hunting, Inc., an adjoining property owner. Mr. Costello stated he is not really against this, but lie would like to point out that he's not sure that the right neighbors were all notified. The zoning map is ambiguous and one adjoining parcel is actually 72 -A -6, just on the other side of Fromans Run and it's owned by the Turner Family LLC. Mr. Costello tried to send them a copy of the notice so that they would know, but he doesn't know for sure if they got it. Mr. Costello stated that is the only point that he wanted to make. As far as the variance itself, Hunting, Inc., has no problem with that whatsoever. The Board members discussed this at length. Mr. Perry asked Mr. Costello if his concern is that possibly adequate notification had not been rendered and Mr. Costello responded yes. Mr. Cheran stated that Staff s zoning map was not showing any other properties. Mr. Cheran stated that the property was posted prior to this meeting and the meeting announcement is posted in the local newspaper. To Mr. Cheran's knowledge, this is what Staff s tax maps are showing and what we've gotten from the tax assessor's office. If the Board feels notification has not happened, it's within the Board's purview to table this until we re- check and re- notify adjoiners. The application did make it into the newspapers and the Handley and Bowman Libraries, and the sign was posted on the property. Chairman Catlett stated that if the property is not owner occupied, they may not have seen the newspaper or sign postings. Mr. Cheran stated that is correct and it could become an issue. Mr. Cheran further stated that he is not doubting Mr. Costello because sometimes maps do not get caught up when there are transactions. Through discussion with Mr. Cheran, the Board asked what could happen if an adjoiner was not notified of this hearing. Mr. Cheran stated that the matter would be brought back and presented to the Board, again after sending adjoiner letters and posting the advertisement. The Board must decide whether to table the matter or vote on the matter today. Through discussion with Mr. Costello, the Board determined that the Turner family lives locally and that Mr. Jeff Turner, one of the land owners, lives in a house which is approximately 500 yards from the Smith property. Mr. Pitcock stated that he went to the Commissioner of Revenue's office and they listed every adjoining property owner for him. Mr. Pitcock stated that Mrs. Smith is buying a house from Foremost and that the price of her house goes up $10,000 May 1 ". He said he has a problem with tabling this because he followed the correct procedures and believes the information to be correct. Mr. Rinker stated that the applicant checked the files and staff checked the files. Mr. Rinker has known Mr. Costello for many years and he's not insinuating he would, but if he was disgruntled neighbor, he could come in and make that claim and it would have no basis. Mr. Rinker reiterated he is not insinuating Frederick Co. Board of Zoning Appeals Minutes of March 15, 2005 Minute Book Page 1291 that Mr. Costello is doing that, and he feels they should take the word that Staff has verified it versus someone who comes in off the street, making an accusation. Mr. Wells made a motion to table this motion until the April meeting and give Staff an opportunity to contact Turner Family LLC. There was not a second to Mr. Wells' motion. Mr. Shenk made a motion to approve the variance based upon the information in front of the Board. Mr. Rinker seconded the motion and it passed by unanimous vote. PUBLIC HEARING Variance Request 906 -05 of Lawrence Plasters for 35 foot front yard, 25 foot rear yard and 10 foot left and right side yard setback requirements due to shallowness of lot. This property is located off of Wardensville Grade (Route 608), right onto Capon Springs Trail, right onto Aster Trail and third lot on the right. The subject property is identified with Property Identification Number 69A01 -30 -10 in the Back Creek Magisterial District. ACTION —VARIANCE APPROVED Mr. Cheran stated this property is located in Duck Run on Wardensville Grade. He asked the Board to look at the Building Permit in their agenda packet, showing Staff had changed the property location from Shawneeland to Duck Run. In the Assessor's Office, this is notated as Shawneeland which is R5. When you apply for a building permit like Mr. Plasters did, it comes up with the setbacks to be in Shawneeland. 40 Setbacks for Shawneeland are what the RP setbacks are, not what the RA setbacks are. Mr. Cheran askedtheBoardtonotetheStopWorkOrderintheiragendatostopworkbecausethebuildingpermitwasissued with the incorrect setbacks. This was a computer glitz and probably the County's fault. It was not Mr. Plaster's fault. We are trying to correct this through the Assessor's file because these lots are buildable lots. The original plat says " Shawneeland" and that's how it's recorded in the Assessor's file. Mr. Cheran gave the staff report. This property was created in 1970 as noted by the deed and plat included in your agenda. Frederick County adopted performance zoning in 1967. The Frederick County historical zoning map shows this property was zoned A -1 (Agricultural Limited) in 1967. The property setback lines at the adoption of the zoning ordinance were 35' front and 15' sides. Frederick County amended its Code in 1989 to change the rural zoning districts to the current RA Rural Areas) zoning district. The current setbacks for property in the RA zoning district abutting lots with residential use are 60' front and 50' rear and sides. Mr. Cheran further stated that the Code of Virginia, Section 15.2- 2309(2), states that no variance shall be authorized by the Board unless it finds that 1) strict application of the Ordinance would produce an undue hardship; b) that such hardship is not shared generally by other properties in the same zoning district and the same vicinity; and c) that the authorization of such variance will not be of substantial detriment to adjacent property, and that the character of the district will not be changed by the granting of the variance. The applicant is seeking a variance of 25' front and rear and 40' left and right side setback. Should this variance be granted, the building setback would be 35' front, 25' rear and 10' sides of the property. It appears that this variance meets the intent of the Code of Virginia, Section 15.2- 2309(2), and this request for a 25' front and rear, 40' left and right sides Frederick Co. Board of Zoning Appeals 1292MinutesofMarch15, 2005 Minute Book Page variance from the current setbacks of the RA zoning district may be justified. 0 Mr. Wells asked if this variance would be reflected on other lots in the same situation and will they be seeing other people come in with the same request. Mr. Cheran stated that's a possibility. He said two things could happen. They could apply for a variance of all the lots or they could do boundary line and lot consolidation to get a buildable lot to follow today's setback requirements. In the R5 districts, mainly Mt. Falls Park and Shawneeland, the Zoning Administration by ordinance can grant up to 25% of the setback in those two areas only. Mr. Cheran stated in the short term, you may see as development starts, you may see a lot more of these coming in front of you. Mr. Cheran said we're working with the Assessor to identify Duck Run so permits will not be issued to that area incorrectly. Chairman Catlett asked Mr. Plasters if he wished to come forward and speak and he declined. Chairman Catlett asked if anyone is present to speak in favor of the variance request and no one responded. She then asked if anyone is present who opposes the request, and no one responded. Mr. Stephen Zebarth expressed that he would like to speak and approached the podium. Mr. Zebarth stated that he and Mr. Plasters are neighbors. Mr. Zebarth stated the reason that he's speaking is that this is going to happen again. Mr. Kevin Combs then approached the podium, stating that he owns three lots above Mr. Plasters', and he has had to consolidate the lots in order to adhere to setback requirements. Mr. Combs stated he didn't mind doing this because all his lots are on one corner, but it would be kind of nice if he would have one of them that he could do something else with instead of having to lot consolidate all of them together in order to get the correct setbacks. He further stated that everything he's got has Shawneeland on it and he was under the assumption when he bought there, it was 35, 25, 25 and 10, and he thought he had three useable lots. As there was no one else who wished to speak for or against the request, Chairman Catlett closed the public portion of the meeting. DISCUSSION Mr. Rinker made a motion to approve this variance request for hardship reasons. Mr. Scott seconded the motion and it passed unanimously. OTHER Chairman Catlett stated there is another issue and she asked Mr. Perry to speak. Mr. Perry stated that after further thought on the item in February, he felt that he may have voted inappropriately. He would like to have a session with counsel to confirm some legal issues, and then consider the appeal application again in April. Mr. Perry made a motion to reconsider the vote taken on February 15, 2005 in the Appeal Application of Colleen McDonough — an appeal of the Zoning Administrator's decision regarding setbacks. Mr. Perry stated further that he would like to seek counsel advisement on the issue, and continue the reconsideration of Appeal Application #01 -05 Frederick Co. Board of Zoning Appeals Minutes of March 15, 2005 Minute Book Page 1293 until the next BZA agenda in April. 0 Chairman Catlett asked Mr. Cheran to refresh the member's memories on the situation. Mr. Cheran stated the appeal was of the Zoning Administrator's determination having to do with the non- conforming lots in the Welltown Heights Subdivision, which is a RA subdivision, and what Mr. Perry is asking is that the interpretation of the Zoning Administrator may have been wrong and the Board may need to seek counsel. Chairman Catlett asked if this was the case where her neighbor was building and Mr. Cheran responded yes. Chairman Catlett stated the gentleman was building and Ms. McDonough filed the application. Mr. Rinker said Ms. McDonough asked for the determination. Mr. Cheran stated that the Zoning Administrator issued a Building Permit based on the plat that had a front setback, not the side or rear that ran with the deed. Mr. Cheran said that at that meeting, Mr. Perry asked Mr. Mitchell about this and Mr. Mitchell stated that he thought if it wasn't recorded on the plat, it didn't apply. Also, some of the Board members felt if it went with the deed, it was all right. Mr. Perry is now asking that Mr. Mitchell review it again. Mr. Cheran stated this would give staff an opportunity to set up a session with the BZA's counsel, Mr. Mitchell, and find out if there were errors and to start over if there were. Chairman Catlett asked if the Board reversed the Zoning Administrator's decision and Mr. Cheran said no, the Board affirmed his decision. Chairman Catlett said that's right, that he was within his right to build. Mr. Rinker asked if the Board was actually going to reconsider the actual decision they made, or that decision stands and we seek the information for future reference. Mr. Perry stated that he wants some counsel from Mr. Mitchell — did we really do right. because of the different information in the documents. Mr. Rinker stated that he doesn't have a problem with the Board meeting with Mr. Mitchell and discussing a situation like this, but Mr. Rinker doesn't want to go back and reopen that case and reconsider that case. He feels like the Board made a decision and that decision stands. If the applicant wants to appeal it to the Court, so be it. Mr. Perry stated that he totally agrees with Mr. Rinker, but his only concern is did they make a decision based on inaccurate information. Chairman Catlett asked if the Board could reconsider it if they've already taken action. Mr. Scott stated he believed it had to go to the Court, to the next level. Mr. Rinker stated it would have to be appealed to the Circuit Court or start over again with a new application in order for the Board to hear it again. It was the consensus of the Board members that they meet with Mr. Mitchell for his Frederick Co. Board of Zoning Appeals Minutes of March 15, 2005 Minute Book Page 1294 advisement; however, the members do not want to endorse Mr. Perry's motion. Mr. Wells asked if, after the Board meets with Mr. Mitchell, will the McDonough appeal be reconsidered. Mr. Rinker stated he thinks that Mr. Mitchell's advice is going to be for the future. Chairman Catlett asked Mr. Perry if he would have a problem withdrawing his motion as stated, and Mr. Perry said that he would not. Mr. Perry withdrew his motion. Chairman Catlett asked Mr. Cheran to request a meeting with Mr. Mitchell and he said he would. Mr. Cheran stated he will talk with the applicant. Ms. McDonough's 30 days are up today; however, she will receive an additional 60 days through the Board meeting with counsel, so she will not lose her right to appeal. As there were no other items or new business to be discussed, the meeting adjourned at 5:15 p.m. by unanimous vote. Respectfully submitted, Theresa B. Catlett, Chairman Bev Dellinger, Secretary Frederick Co. Board of Zoning Appeals Minutes of March 15, 2005 Minute Book Page 1295